Americans United for Separation of Church and State has compiled some noteworthy quotations from the opinions of retiring Supreme Court Justice John Paul Stevens on the topic of religion-government separation.
That topic is one of the main reasons I’ll miss having Justice Stevens on the Court. In 1878 the Supreme Court quoted with approval a statement in a letter penned by Thomas Jefferson that the First Amendment’s Establishment Clause set up “a wall of separation between church and State.” Reynolds v. United States, 98 U.S. 145, 164 (1878). Lofty rhetoric notwithstanding, the Supreme Court has never interpreted the Establishment Clause as actually requiring strict separation or anything even close to strict separation. In one landmark case, the Court quoted Jefferson’s letter then promptly held that a state statute and local board of education resolution that combined to authorize the use of public funds to transport children to and from Catholic schools was A-OK. Everson v. Board of Education, 330 U.S. 1 (1947).
Stevens is the closest thing to a strict separationist the Court has ever had. A favorite example of mine (one that didn’t make AU’s list) comes from City of Boerne v. Flores, 521 U.S. 507 (1997). At issue in that case was the constitutionality of a federal law called the Religious Freedom Restoration Act (“RFRA”), passed in 1993 in response to a1990 Supreme Court ruling that many considered an overly narrow and restrictive view of the First Amendment’s Free Exercise Clause.
The Supreme Court ruling was narrowly based. The majority in Flores held that RFRA was unconstitutional as applied to state and local governments because Section 5 of the Fourteenth Amendment – the power by which Congress purported to render RFRA applicable to those entities – didn’t extend quite so far.
Justice Stevens wrote a very short but much broader-based concurring opinion in which he concluded that RFRA “is a ‘law respecting an establishment of religion’ that violates the First Amendment to the Constitution.” His rationale:
If the historic landmark on the hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinances that forbid an enlargement of the structure. Because the landmark is owned by the Catholic Church, it is claimed that RFRA gives its owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law. Whether the Church would actually prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment.
We may never have another Supreme Court justice who favored separation as thoroughly as Stevens does.